Counsel for Defendant and Respondent: Jeanine B. Nadel Mendocino County et al. Terry Nan Gross OFFICE OF THE COUNTY COUNSEL

Counsel for Real Party in Interest and Respondent: Mark David Harrison Granite Construction Company HARRISON TEMBLADOR HUNGERFORD & JOHNSON

Siggins, J.

Masonite Corporation (Masonite) appeals from a judgment denying its petition for writ of mandate to set aside approvals by Mendocino County (County) of the Kunzler Terrace Mine Project (Project) to be developed by Granite Construction Company (Granite; Granite and the County are hereafter referred to collectively as respondents), and the final environmental impact report (EIR) for its Project, for failure to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).

Masonite argues the approval process and the EIR were deficient in several ways. The County was required to recirculate the EIR because the Project as approved had significantly greater impacts than the one originally proposed. Recirculation was also required because the EIR disclosed a new significant impact on the Foothill Yellow-Tailed Frog (Frog) that was not adequately mitigated. The County erroneously determined that conservation easements and in-lieu fees were not feasible ways to mitigate the loss of prime farmland due to the Project. The EIR did not adequately analyze the Project’s cumulative impacts on agricultural resources. The County failed to adopt adequate measures to mitigate significant impacts from truck traffic along a private road associated with the Project. And finally, that the EIR failed to adequately evaluate Project alternatives.

We agree with Masonite’s contentions involving: recirculation for comment on possible mitigation measures that can protect the Frog; the infeasibility of agricultural conservation easements and in-lieu fees; discussion of cumulative impacts on farmland; and mitigation measures for truck traffic. Accordingly, we reverse the judgment denying the petition for writ of mandate, with directions that the County set aside its certification of the EIR, and prepare and circulate a supplemental EIR that addresses the errors we identify.

I. BACKGROUND

The Project is a sand and gravel quarry to be developed on 65.3 acres approximately one mile north of Ukiah. The site is bordered on the north by Ackerman Creek, on the east by the Russian River, on the south by property owned by Masonite, and on the west by Kunzler Ranch Road. Most of the site is cultivated as a vineyard, with an open space portion in the northeast and a truck maintenance shop at the northwest corner. Forty-five acres of the site’s 65 acres are classified as “prime farmland, ” but the site has been zoned for industrial use since 1982. It is surrounded by a lumber mill to the north of Ackerman Creek, agricultural land to the east of the Russian River, Masonite’s industrial property to the south (described as “vacant” on area maps), and industrial and commercial properties to the west.

Granite plans to extract 3.37 million tons of aggregate from 30.3 acres of the site over a 25-year period. The mine is designed to operate year-round, six days a week, 14 hours a day.[1] The mining will be done in phases to allow for concurrent site reclamation, and five years of reclamation are planned after the mining operations are complete. Following reclamation, the northwestern portion of the property will be available for future industrial uses, and the rest of the site will be “open space (ponds).”

Granite submitted an application to the County for approval of a conditional use permit and reclamation plan for the Project in February 2008. The County determined that an environmental impact report was required, solicited comments from government agencies in April 2008, and noticed preparation of a draft environmental impact report (Draft) in October. The Draft was released for public and agency review in September 2009. Among those who commented critically on the Draft and the Project were SCS Engineers on behalf of Masonite, and Russian Riverkeeper, an organization dedicated to protection of the Russian River environment.

The EIR was released for review on May 3, 2010. The EIR identified two significant and unavoidable Project impacts, the permanent loss of prime farmland, and traffic problems that would develop by the year 2030. The EIR came before the County Planning Commission on May 20, 2010. After considering public comments, including those on behalf of Masonite, the Planning Commission certified the EIR and approved the use permit and reclamation plan. The Planning Commission adopted a statement of overriding considerations noting, among other things, that the Project would provide “a reliable 20-year supply of construction aggregate in the Mendocino County area.”

Masonite and Russian Riverkeeper appealed the planning commission decisions to the County Board of Supervisors. The appeals were heard by the board on July 27, 2010. The day of the hearing, Masonite filed a 49-page letter brief challenging the EIR on approximately 20 grounds. The board denied both appeals.

Masonite and Russian Riverkeeper filed petitions for writ of mandate seeking to overturn the County’s approval of the Project due to violations of CEQA. The petitions were denied, and Masonite and Russian Riverkeeper appealed from the judgments. Russian Riverkeeper’s appeal was dismissed after settlement.

II. DISCUSSION

A. Scope of Review

“In reviewing an agency’s compliance with CEQA... the courts’ inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion.’ [Citation.] Such an abuse is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ [Citations.]

“An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case... is the same as the trial court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo. [Citations.] We therefore resolve the substantive CEQA issues... by independently determining whether the administrative record demonstrates any legal error by the County and whether it contains substantial evidence to support the County’s factual determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427, fn. omitted (Vineyard).)

B. Recirculation of the EIR

(1) Arguments and Standards

Masonite contends that the EIR should have been recirculated for public review because the Project as approved was “different markedly” from the one analyzed in the Draft and had more severe environmental impacts, and because the EIR identified a new significant impact on the Frog.

“A lead agency is required to recirculate an EIR when significant new information is added to the EIR after public notice is given of the availability of the draft EIR for public review... but before certification.” (Cal. Code Regs., tit. 14, § 15088.5, subd. (a) [the CEQA Guidelines in Cal. Code Regs., tit. 14, § 15000, et seq. are hereafter cited as Guidelines]; Pub. Resources Code, § 21092.1.) “[T]he addition of new information to an EIR after the close of the public comment period is not ‘significant’ unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect.” (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1129 (Laurel Heights II); see also Vineyard, supra, 40 Cal.4th at p. 447, quoting Laurel Heights II.) “Significant new information” includes a disclosure showing that “[a] new significant environmental impact would result from the project....” (Guidelines, § 15088.5, subd. (a)(1).)

(2) Project Alterations

The Project was changed in two respects from the one originally envisioned.

(a) Pond-River Connection in Lieu of a Weir and Fuse Plug

Granite’s application for the use permit and reclamation plan recognized that, “because of its proximity to the Russian River and Ackerman Creek, the project site has valuable aquatic and riparian habitats adjacent to it. The aquatic habitat supports Chinook salmon and steelhead, both listed as threatened species under the Endangered Species Act. The primary concern for these species relative to the proposed project is the potential for fish entrapment in the pit during floods high enough to inundate the site.” The application noted with respect to hydrology and drainage that, “as an alluvial terrace adjacent to the Russian River and Ackerman Creek, ” the Project site “is subject to periodic inundation.... Extensive hydrologic modeling was conducted to design an overflow structure that would minimize the potential for fish to become entrapped in the pit, and prevent erosion of pit banks and walls during a 100-year flood event.”

Granite’s application proposed to address the potential for flooding and trapped fish with construction of a flood control weir and fuse plug. “The armored overflow weir gives the creek and river a controlled access and drainage point for flood waters without eroding the mining buffer, while the erodable [sic] fuse plug limits potential fish entrapment.” In May 2008, comments on the Project, the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration stated that “reconnecting the pit to the stream” would provide better long-term protection for endangered salmonids than the proposed weir and fuse plug. Granite’s study of the NMFS proposal, attached as Appendix F to the Draft, concluded that it would be preferable to use a connection channel between the mine pond and the Russian River in lieu of the weir and fuse plug.

The Project as proposed in the Draft provided for use of the weir and fuse plug, but the pond-river connection channel design was presented as “Alternative 3” It replaced the weir and fuse plug with “a culvert (or culverts) suitable for the project life (rather than as a permanent structure as under the proposed project), ” and eliminated the need for ongoing maintenance of the weir and fuse plug. The Draft determined that “stranding or entrapment of special-status salmonids” would be a potentially significant impact if the Project were constructed with the weir and fuse plug. However, mitigation measures that included salmonid rescue and relocation programs implemented in consultation with NMFS and the Department of Fish and Game (Fish & Game), would make this impact “[l]ess than significant.” The Draft further stated that if Alternative 3 was implemented, it would “reduce[] the potential significance of pit capture and salmonid entrapment” and “eliminate the need for the rescue plan.”

In November 4, 2009, comments on the Draft, NMFS expressed concern that when pit mining operations resulted in ponds of standing groundwater more than 35 feet deep, anaerobic conditions would threaten the vitality of any salmonids trapped in the ponds, and the depths of the reclaimed ponds would need to be regulated to achieve suitable habitat.

The County determined in the EIR that Alternative 3 was “environmentally superior” to the weir and fuse plug, and the NMFS supported Alternative 3 in comments submitted prior to Planning Commission approval of the EIR. As approved, the Project included the pond-river connection in lieu of the weir and fuse plug reflected in the revised reclamation plan appended to the EIR.

Although the Draft stated that the pond-river connection would eliminate the need for a salmonid rescue program, the EIR retained a rescue program during the mining phase of the Project. The Draft set forth two options for the reclamation phase. Option A provided for construction of the pond-river connection unless NMFS and Fish & Game staff determined that the &ldquo;potential adverse water quality within the pit&rdquo; would outweigh the connection&rsquo;s expected benefits to salmonid habitat. Option B required Granite to continue the salmonid rescue program until NMFS and Fish & Game said it was no longer needed.[2] In the EIR, Option B was unchanged, and Option A was amended to provide simply for construction of the pond-river connection. The deference to NMFS and Fish & Game concerns over water quality in the pit was replaced in the EIR by more detailed mitigation requirements, set forth in new mitigation measure 3.4.4-ALT 3, to address concerns raised in ...

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